By: Alexander D. Fisher, Esq.

Alexander Fisher

For years, potential plaintiffs suing under the Americans with Disabilities Act (ADA) have been able to make claims against business owners relating to purported failures to comply with the highly technical requirements of the law, and without any intention to patronize the businesses.  That may be changing now with the United States Supreme Court’s decision to grant certiorari and accept the appeal in the case of Acheson Hotels v. Laufer.

The Americans with Disabilities Act, passed in 1990, was considered landmark legislation that at its heart prohibited discrimination based on disability.  With respect to places of public accommodation, such as restaurants, stores, arenas, hotels, and office buildings, the law provided that, “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S. §12182(a).  Many states, including New York, have similar laws.  What this means is that a business is required to make reasonable accommodations for an individual’s disability that do not impose an undue hardship on the business so that the disabled person can access the same goods and services as an able-bodied individual.

As part of the ADA, there are a number of regulations that were instituted with which businesses must comply.  Some of these regulations are well understood, such as handicapped-accessible ramps and bathroom stalls, while others are less apparent, such as the height of a bathroom towel dispenser, the height of a hostess stand in a restaurant, whether all areas of an establishment, such as an upstairs private party room, are accessible to patrons,  and even whether notifications of accommodations for disabled persons are appropriately posted on websites.  The sheer breadth and scope of the regulations make it likely that many, if not all, businesses open to the public have technical ADA violations.  This is especially true in New York City, with small and historic spaces often incompatible with the requirements of the ADA. While the ADA usually does not provide for monetary damages for the plaintiff for any such violations, the law does provide for full reimbursement of attorney’s fees for a prevailing party, which many courts have interpreted to apply when any ADA violation is shown, regardless of severity.  More important, the analogous laws in some states do provide for monetary damages for plaintiffs.

Since the passage of the ADA, and particularly over the past few years, a cottage industry of sorts has developed where disabled individuals (known as “testers”) seek out individual businesses and file numerous lawsuits over any defects that are found.  Sometimes, the disabled individual will traverse a street and document purported violations in each business before filing lawsuits against them.  Many plaintiffs in such lawsuits have a history of filing hundreds, if not thousands, of such lawsuits.  More recently, this has expanded to online searches of what accommodations a particular business has for disabled individuals, meaning that a tester may be able to obtain information necessary to file hundreds of lawsuits a day through a simple internet search at home. After the lawsuit is filed, attorneys will then demand that modifications be made and will also seek attorney’s fees just for filing a “boilerplate” complaint and serving initial discovery demands.  Since such claims are generally not covered by typical Commercial General Liability (CGL) policies, many businesses are faced with a choice of either hiring counsel (and possibly an engineering expert) to defend the case, with the knowledge that any deficiency that is found will result in additional attorney’s fees owed to plaintiff’s counsel, or simply settling the case, making the changes requested, and paying plaintiff’s counsel the requested attorney fees.  Often, the modifications requested are far less expensive than even the initial attorney’s fee claim, which can run into the thousands or tens of thousands of dollars. 

It should be noted that settlements in such cases only cover the defects alleged by that particular plaintiff. Therefore, while a person in a wheelchair would require certain modifications to be made, a person who was hearing or visually impaired would require an entirely different set of accommodations. Thus, there is always the possibility of a subsequent suit based on entirely different violations of the ADA. 

The rise in ADA lawsuits has attracted the attention of major media organizations, with the New York Times[1]  and Washington Post[2] among others publishing stories on the issue. While many ADA claims were previously concentrated in coastal cities, recently there has been an increase in claims in more rural areas, where there are more small local businesses likely with even less compliance with all of the technical requirements of the law. Such businesses, which often run on thin margins and do not have large cash reserves, may be even more susceptible to such suits and more exposed to business failure by the costs associated with such claims.

In the Acheson Hotels case, the plaintiff allegedly accessed various websites for hotels and inns on Maine’s coast, and then brought a lawsuit against certain of those establishments over a lack of information about disability accommodations.  Plaintiff did not have any intention of staying at these establishments and was merely intent on finding violations for the sole purpose of suing these establishments as noted above.  Courts have been divided on whether plaintiffs who have no intention of patronizing a business, or plaintiffs who make a minimal attempt to patronize a business (i.e., walk in and look around with no intention to purchase goods or services) have standing to assert an ADA violation claim[3].  In Acheson Hotels, plaintiff’s claim was dismissed by the District Court for lack of standing[4], before being reinstated by the First Circuit Court of Appeals[5] in Boston, which held that “testers” were permitted by the Supreme Court in Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982).  In Havens Realty, the Supreme Court allowed testers in connection with purported violations of the Fair Housing Act. 

In taking the case, the Supreme Court seems likely to clarify what connection the disabled individuals need to have to the business to bring suits under the ADA.  While plaintiffs would likely still be able to bring such suits (since the statutory text of the ADA allows such), a requirement that a plaintiff actually patronize a business and suffer some sort of concrete harm before bringing such a lawsuit would theoretically limit the number of such claims, at least from one particular plaintiff.  Such a requirement would also potentially prevent cases where “testers” visit hundreds of websites a day solely for the purpose of looking for technical violations of the ADA, and then subsequently commence lawsuits.

We will follow the Supreme Court’s decision on this case, which is expected to be heard this Fall, with a decision likely in the Spring of 2024.  In the meantime, businesses will want to ensure that they have complied with as many ADA provisions as possible, and perhaps retain a consultant to ascertain whether small relatively inexpensive changes can be made that would make such businesses less likely to be targeted for such claims.

[1] “The Man Who Filed More Than 180 Disability Lawsuits”, New York Times, August 29, 2021

[2] “U.S. Businesses Get Hit With Record Numbers of Disability Lawsuits”, Washington Post, April 14, 2022

[3] See, Laufer v. Mann Hospitality, L.L.C., 996 F.3d 269 (5th Cir., 2021); see also, Sarwar v. Om Sai, LLC, 2021 U.S. Dist. LEXIS 93703 (D. Maine, 2021)

[4] Laufer v. Acheson Hotels, LLC, 2021 U.S. Dist. LEXIS 93703 (D. Maine, 2021)

[5] Laufer v. Acheson Hotels, LLC, 50 F.4th 259 (1st Cir. 2022)